Hocut v. Insurance Co. of North America

• Decision Date: 22 October 1971
• Docket Number: No. 3582,3582
• Citation: 254 So.2d 108
• Parties: Mrs. Imogene HOCUT, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 108

254 So.2d 108

Mrs. Imogene HOCUT, Plaintiff-Appellee, v.INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.

No. 3582.

Court of Appeal of Louisiana, Third Circuit.

Oct. 22, 1971.

Rehearing Denied Nov. 23, 1971.

Writ Refused Jan. 17, 1972.

Scofield & Bergstedt, by John B. Scofield, Lake Charles, for defendant-appellant.

Jones & Jones, by J. B. Jones, Jr., Cameron, for plaintiff-appellee.

Before FRUGE , MILLER and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

This is a suit by Mrs. Imogene Hocut, prosecuted under the Jones Act, 46 U.S.C.A. § 688, for the wrongful death of her husband, Joe Chester Hocut, allegedly drowned while in the course of his employment on the M/V F.A.R. Horizons.The only defendant, Insurance Company of North America, was impleaded under the direct action statute, La.R.S. 22:655, as the liability insurer of F.A.R. Trawlers, Inc. owner of the vessel.Originally the suit also involved claims of unseaworthiness under the general maritime law, and Mrs. Hocut's major children were additional partiesplaintiff, however all but the Jones Act claim of Mrs. Hocut were dismissed with prejudice on motion of plaintiff's counsel .

In late January, 1970, the shrimping vessel F.A.R. Horizons, measuring 68.5 feet in length, 22.1 feet in width, and 11.3 feet in depth, under the command of Captain Jules Lancon, made port in Cameron, Louisiana and her entire crew quit.Because he had recently applied for a position on the F.A.R. Horizons, Captain Lancon called Joe Hocut in Freeport, Texas and offered him employment on his vessel.Hocut accepted the employment and together with his wife, the plaintiff herein, traveled to Cameron.They were unable to locate a place to live in Cameron however, and so the plaintiff returned to Freeport.Hocut was assigned quarters on board the vessel and given the only key thereto.

For some five days Lancon and Hocut worked on the vessel making her ready for a fishing expedition, they being unable to leave port due to heavy fog, and Hocut spent the nights on board.Finally on January 30, it appeared as though the weather would soon clear and therefore Captain Lancon told Hocut to be prepared to sail early the next morning.Hocut assured Lancon that he would be sleeping on the boat so there would be no problem with his being there, and requested a $25.00 advance on his pay.Captain Lancon obtained the requested advance from a local fish company and delivered it to Hocut at a lounge where the latter had gone to drink.Lancon then went to his home, leaving Hocut in the lounge.

The son of Captain Lancon, Bill Lancon, testified that he saw Hocut in the aforementioned lounge sometime between three and five o'clock that afternoon and that when he went home around eight o'clock, Hocut was still there and was 'feeling his beers'.That was the last time that any witness saw Hocut alive.

When Captain Lancon went to his boat the next morning, Hocut was not there and the boat was locked.The Captain enlisted the aid of a local police officer and searched the town for Hocut, but without success.He considered Hocut a responsible individual and he remained in port for approximately one week during which time he searched for Hocut and had the adjoining water churned by tugboats, but there was no sign of him.

On February 12, 1970Shelton LeBlanc, an employee of the fish company where Lancon had obtained the advance given to Hocut, saw the latter's body floating in the water some seventy-five years from the docks where the F.A.R. Horizons had been moored on the night of his disappearance.At that moment LeBlanc was ordered to do a chore by his employer, and not being certain that the object he had seen floating was in fact a body, he performed his assigned task and then ate his lunch before going out to investigate.When he did so, the body had been carried farther from the docks by the current and by the time it was recovered it had drifted farther still.

Clayton Nunez, the Wild Life & Fisheries agent who recovered the body, testified that when the body was put ashore, a pack of cigarettes fell from the shirt pocket and that some of the papers in Hocut's wallet were still dry in the center.The body, he said, had no marks on it whether from crabs or other causes, and was not too swollen.He also testified that there are no crabs in the winter, that bodies rise only when they decompose, that the low temperature of the water would tend to preserve the body, and that at the time there were four other bodies in the area, that had been submerged for two weeks.

The parish coroner, Dr. Cecil W. Clark, examined the body immediately upon its removal from the water and made a subsequent examination by x-ray in a hospital.The doctor testified that the body was distended and had apparently been under water for several days.The x-ray examination showed water in the lungs but did not show any broken bones nor was there any other evidence of trauma or violence.The cause of death therefore, was diagnosed as drowning.

Trial was had by a jury which returned a general verdict in favor of plaintiff in the amount of $50,000.00.The trial judge reduced that award by the amount of the deductible in defendant's policy, $250.00, and rendered judgment in favor of plaintiff for $49,750.00.Defendant appealed that judgment to this court.

We deem it proper to point out, before beginning our discussion of the issues herein, that the scope of our review in Jones Actcases is the same as that accorded the Federal appellate courts.Trahan v . Gulf Crews, Inc., La.App., 246 So.2d 280; and cases cited therein.In Gallick v. Baltimore and Ohio Railroad Company, 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the Supreme Court of the United States in quoting from Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 defined those limits as follows:

"It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences.The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury.It is the jury, not the court, which is the fact-finding body.It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts.The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235;Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. (54) 68, 63 S.Ct. (444) 451(87 L.Ed. 610), 143 A.L.R. 967;Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444.That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored.Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.'321 U.S., at 35, 64 S.Ct. at 412.'

In Trahan v. Gulf Crews, Inc.supra, we quoted from Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, thusly:

'It is no answer to say the jury's verdict involved speculation or conjecture * * * Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear * * * the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.'(Emphasis added)Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916.

The scope of our review of this case, then, is severely limited by federal law and we shall confine ourselves within those limits in examining the jury's verdict.

The jury rendered a general verdict and one of the errors specified by defendant is the court's refusal to submit the case on special interrogatories as requested by it.

The decision of whether or not a case will be submitted to the jury on special interrogatories is one resting exclusively within the discretion of the trial judge and there is no mandatory requirement that a case be thus submitted because a party requests it.La. Code of Civil Procedure, Articles 1811--1812;Mulkey v. Aetna Casualty and Surety Company, La.App., 210 So.2d 897.There is therefore no merit to defendant's contention, but we are left without specific knowledge of the jury's determinations and accordingly we must look to see if the essential elements for recovery under the Jones Act were reasonably established.

The learned trial judge correctly instructed the jury that those elements require: 1) that at the time of his death, Hocut was in the service of the vessel, F.A.R. Horizons, and, 2) that his death was caused in whole or in part by the negligence of the officers, agents or employees of F.A.R. Trawlers, Inc., the owner of the vessel.(Although the trial judge used the term 'service of the vessel' rather than the proper term under the Jones Act, 'course of employment', these terms were held to be the equivalent of one another in Braen v. Pfeifer Oil Transportation Co., 361 U.S. 129, 80 S.Ct. 247, 4 L.Ed.2d 191.)

On the first point, whether Hocut was in the course of his employment when he drowned, the evidence establishes that he had been sleeping on the boat the previous few nights and that he expected to do so that night.Every indication is that although given to drink, a common diversion among seamen, Hocut was a responsible and reliable individual.Thus the fact that he knew he was to put out to sea the following morning is significant.He drowned, according to the medical testimony, several days before...